AustLII Home | Databases | WorldLII | Search | Feedback

Indigenous Law Bulletin

Indigenous Law Bulletin
You are here:  AustLII >> Databases >> Indigenous Law Bulletin >> 2009 >> [2009] IndigLawB 23

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Charles, Chris --- "The National Cross - Border Justice Scheme" [2009] IndigLawB 23; (2009) 7(12) Indigenous Law Bulletin 23

The National Cross-Border Justice Scheme

By Chris Charles.

In October 2005, the Solicitors-General of the Northern Territory (‘NT’), Western Australia (‘WA’) and South Australia (‘SA’) agreed in principle that their jurisdictions ought to cooperate to implement a cross-border legislative scheme to address criminal matters and jurisdictional issues arising between their boundaries (the ‘cross-border region’). The precise delineation of the cross-border region is to be defined according to mutually agreed regulations under parallel legislation introduced in each of the three jurisdictions. Roughly, it is proposed to cover all of the Anangu Pitjantjatjara Yankunytjatjara (‘APY Lands’) in the north-west of SA, the WA Central Reserves and much of the NT Aboriginal Land south of Alice Springs.

Under the proposed legislation, essentially identical laws will be enacted by Parliament in SA, WA and NT; this will be facilitated by amendments to the Commonwealth Service and Execution of Process Act.[1] The effect will be to allow for persons who reside in, are connected with, or commit offences in, the cross-border region to be dealt with by cross-border magistrates sitting in any of the three participating jurisdictions. Each Act will specifically empower police, sheriffs and correctional officers from the other two jurisdictions to exercise cross-border powers in SA even where alleged offences have taken place outside of that State.[2] SA police will also be given cross border powers.[3]

At the time of writing, the WA Government has already enacted the Cross-Border Justice Act 2008 (WA); NT and SA Bills are currently before their respective Parliaments.[4]

How the Legislation Works
The fundamental concept of the scheme depends upon a person’s connection with the cross-border region. This connection is very broadly defined. Section 20(2) of the SA Cross-Border Justice Bill[5] (‘the SA Bill’), for example, provides that the legislation applies in respect of any offence where:

a. The offence is suspected, alleged or found to have been committed in the cross-border region.
b. If at the time of the person’s arrest for the offence, the person was in the cross-border region or the person ordinarily resided in the region.
c. At the time at which the offence is suspected, alleged or found to have been committed, the person ordinarily resides in the region.

Section 20(3) sets out corresponding principles that apply to the courts exercising cross-border jurisdiction in criminal proceedings.

Of itself, s 20 does not extend the territorial operation of SA criminal laws. That is already defined by Part 1A of the Criminal Law Consolidation Act, which establishes that, subject to that section, SA criminal laws only cover the geographical area of SA. An offence committed in the SA part of the cross-border region is a sufficient but not necessary trigger for the legislation to apply. So an SA person resident in Adelaide, who commits an offence at Indulkana (a community on the east of the APY Lands) has sufficient connection to the cross-border region and the proposed laws would apply to his or her offence. A person who resides at Indulkana, but commits an offence in Adelaide, also has a sufficient connection.

In reality, Adelaide offences would most likely be dealt with in Adelaide in the usual way. But what the scheme will do is to give police, corrective services and magistrates from WA and NT powers and jurisdiction to deal with persons who have a relevant connection with the cross-border region in any part of SA. The same effect will be achieved in WA and NT by parallel sets of legislation. This means that, if an SA resident with a necessary connection to the cross-border region commits an offence in SA, but then flees to WA, SA police officers may arrest and charge that person under SA law in that State. Police may also bring the offender before a cross-border magistrate, who will apply SA law in respect of the offence. This is so notwithstanding that the offender, and presiding magistrate, are both in WA. Further, even though the relevant offence took place in SA, if sentenced to custody, the offender is likely to be imprisoned in a WA prison. As a parallel legislative scheme, the same effect will be achieved in interstate matters being prosecuted in SA from WA and NT.

Concurrent Jurisdiction in Practice
Courts in participating jurisdictions would have powers to set up registries, compel witnesses, administer oaths, punish offenders for contempt of court, issue warrants, summons and all other court processes in respect of courts in other participating jurisdictions.[6] The legislation provides for parallel principles for the enforcement of fines, the registration of restraining orders and like matters.[7] The scheme also makes provision for extended police and judicial powers regarding youths.[8]

The proposed legislation also allows cross-border magistrates to deal with offenders under three sets of laws. This means that, where a person with the necessary connection with a cross-border region has committed offences in all three jurisdictions, the presiding cross-border magistrate can exercise each state and territory’s jurisdiction over that person consecutively.[9] This could conceivably occur if an accused person were arrested in WA on recent WA offences and first instance warrants from SA and the NT came to light and were executed on the person in WA. The court would simply exercise its jurisdiction from WA, then SA and NT to deal with each matter consecutively. The effect is likely to be a net widening of jurisdiction and the imposition of cumulative sentences.

There is an added danger that police and prosecutors may use the legislation as a means of ‘forum shopping’; that is, they may pursue and arrest defendants not in the jurisdiction in which the offence was committed, but rather in the jurisdiction that is most convenient for the aims of law enforcement. Major indictable offences of all kinds would, in the usual course, be dealt with by extradition; but it is likely that committals could be carried out under the cross-border procedures. If so, a committal for an SA offence would commit the person for trial to a superior court of SA, albeit the committal might actually take place interstate and be done by a cross-border magistrate.

Further to these extended procedural powers, judicial officers, correctional officers and police would receive substantially the same protection and immunity as that provided by their own states, when operating in a cross-border jurisdiction. But it is not clear that legal practitioners would receive equal or sufficient protection as officers of the court.[10] Such protections are important for the administration of justice because they protect magistrates from personal liability in respect of actions done in the exercise of jurisdiction. Similarly, lawyers need protection against defamation suits for things they might say in open court. Lawyers need this protection so that they may be fearless in the pursuit of their clients’ interests.

Concerns about the Proposed Legislation
The proposed legislative scheme is extraordinarily complex. It comprises 147 sections and covers some 58 pages. It might be described as a sledgehammer to crack a walnut. The scheme, radical in scope, seems excessive to address jurisdictional issues better resolved by means of expedited extradition procedures. Its extensive reach, in reordering the operation of the criminal justice system in the cross-border region, gives rise to significant concerns.

Drains on Existing Infrastructure and Resources
The Aboriginal Legal Rights Movement (‘ALRM’) is concerned about the resource implications of the legislative scheme on its already stretched legal services. ALRM and the SA Legal Services Commission provide legal services to the APY Lands. As such they would potentially be appearing in cross-border courts sitting on the APY Lands from WA and NT, as well as in cross border courts in WA and the NT. This would require extra training and resources for ALRM legal practitioners and field officers in respect of relevant substantive, procedural and evidential law of both jurisdictions. This is equally true of practitioners working for Aboriginal and Torres Strait Islander Legal Services (‘ATSILS’) that service WA and NT communities within the cross-border region. The cost of providing and maintaining adequate and accredited training in these fields, and the time and effort required for the practitioners concerned, would be enormous.

Further, the scheme has made inadequate provision for cross-admission of practitioners appearing in matters outside their ordinary jurisdiction. So, while SA practitioners might be able to practice in WA and NT, they would be limited by their status as ‘Interstate Practitioners’. They would not have the same status as fully admitted practitioners working in those external jurisdictions.

Uniform Application of the Law
Central to the concept of 'connection to the cross border region’ is the legal concept of ‘residence’. This is a is very elastic common law concept; the legislation is intended to apply to nomadic peoples who attend ceremonies, spend time with family, work, attend funerals and sorry camps and seek entertainment both within and without the cross-border regions. There is the potential for real incongruity in the application of the common law concepts of ‘residence’. Indeed, without a statutory definition to clarify the meaning, it is likely that common law interpretations could be applied differently by the superior courts of each jurisdiction, even though the legislation is to be substantively the same. Incongruity and differences of interpretation could occur because appeals from each cross-border magistrate will go to their respective Supreme Court. The only court able to impose uniformity of interpretation is the High Court of Australia. There needs to be uniformity of interpretation and a kind of Cross-Border common law needs to be developed also.

As the scheme is presently constituted by the cross-border Justice Bills and legislation, there seems to be limited scope for consistent application of common law across all affected jurisdictions. Anomalies and injustices will inevitably result. It is unclear, for instance, whether WA Magistrates, sitting in SA, exercising WA and SA jurisdiction consecutively over the same defendant, would be obliged to apply Frank v Police,[11] in determining a matter concerning a breach of WA law. That case establishes that, where defendants’ command of English is so poor that they cannot understand the criminal proceedings in which they are appearing, the court is obliged to stay those proceedings and grant immediate bail, until such time as a competent interpreter is made available. But Frank v Police is not binding authority on WA or NT Magistrates Courts. Would there be different results for consecutive WA and SA matters if no interpreter were provided? ALRM has recommended that a cross-border appellate jurisdiction be set up with Supreme Court judges from each participating state and territory to encourage the development of a tristate common law. Consistency is essential to the scheme; all defendants are entitled to equal treatment before the law.

Compulsory Custody Notifications
SA police are required to notify ALRM whenever there has been an arrest of an Aboriginal person in SA. Such notifications were introduced in SA pursuant to judicial recommendation[12] and recommendation 224 of the 1991 Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’). It is unclear at this stage what effect the cross-border legislation will have on compulsory custody notifications, since none of the Bills comprising the regime have yet made mention of this essential feature of Aboriginal legal representation. Ideally, SA police would also advise the ALRM of interstate arrests of cross-border persons who are arrested by SA Police but, without specific legislative provision, this cannot be taken for granted. Further, there is no indication as to who is responsible for notifying interstate ATSILS when an interstate arrest occurs in SA. Clearly, it would be desirable for the legislative scheme to adhere to a uniform standard in this regard.[13]

Further, there will be cases where an arrest requires more than simple phone advice from the local ATSILS; some matters will require either a field officer or a legal practitioner to be present at the police interview. In such cases, ATSILS may need to consider inter-jurisdictional resource sharing. These practical considerations need to be the subject of proper consultation with ATSILS. There is a clear need for appropriate protocols to be arranged.

Human Rights Issues
For reasons that have been inadequately explained, the proposed scheme is set to operate retrospectively; police and prosecutors will be able to use the legislation, once enacted, in respect of offences committed before its commencement. This is inconsistent with a fundamental principle that laws must operate prospectively; it is unfair for the state to expect citizens to be subject to the effect of laws that are not yet in existence.

Further, the scheme reverses the onus of proof in relation to facts connected with the cross-border region.[14] If there is an arrest, and the arrested person disputes being present in the cross-border region at the time of the arrest, or ordinarily residing in the cross-border region at the time of the offence, the onus is on that person to prove these matters. Police should always have to prove the facts of an arrest.

Equally concerning is that, under the scheme, persons remanded in custody, or imprisoned as a result of the scheme, could be imprisoned a long way from home. Former Coroner Chivell recommended that a small scale correctional style institution be built on or near the APY Lands;[15] SA Government has not yet implemented this recommendation. This means that an SA cross-border resident could be sentenced to imprisonment under SA and WA law in WA and be held in a prison in Perth. This tendency toward imprisonment at a place remote from the prisoner’s home is contrary to Recommendation 168 of RCIADIC, but is a consequence of the fact that correctional authorities - not magistrates – decide where a correctional prisoner is to be held.[16]

ALRM has concerns that this complex legislation will have the effect of singling out Anangu, the people who live on the APY Lands. They are predominantly Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara people. Although the legislation is expressed in terms of geographical operation, its effects will be primarily be felt by these groups. This is because the cross-border region of SA is defined in terms of the area over which they have been granted land rights.[17] Allowing magistrates sitting in the cross-border regions to deal with matters from each of the three jurisdictions will mean that many more criminal files can be aggregated and dealt with at the same time. ALRM greatly fears that the legislation has the potential to increase the imprisonment rate on the APY Lands and also to cause significant social and family disruption to these communities.[18] Further, it will impose enormous extra strains on already chronically under-resourced ATSILS and Legal Aid Organisations. Ultimately, this issue might have been more effectively – and efficiently – resolved by rationalising the law of extradition.

Chris Charles is General Counsel for ALRM.

[1] 1992 (Cth).
[2] Cross-Border Justice Bill 2009 (SA) (‘SA Bill’), Part 4.
[3] Ibid, Part 3 Division 1.
[4] Ibid, Cross-Border Justice Bill 2009 (NT).
[5]SA Bill, above n 2.
[6] Ibid, Part 6 Division 1.
[7] Ibid, Part 5 Division 4.
[8] Ibid, Part5 Division 2, Part 10 Division 1, subdivision 4 and part 11 Division 1.
[9] This will be possible because of mutual cross-appointment of magistrates and other ‘secondary officers’, ibid, Part 13.
[10] Ibid, s 85(2).
[11] [2007] SASC 288, confirmed by the Full Court of the Supreme Court [2007]SASC418, appeal refused.

[12] R v Williams [1976]14 SASR1.
[13] See Crimes Act 1914 (Cth), ss 23H, J. The Commonwealth model should be a benchmark for the States and Territories.

[14] SA Bill, above n 2, s 17.
[15] See South Australia’s Coroner’s Court, Finding of Inquest into the Deaths of Kunmanara Hunt , Ken and Thompson <> see also Findings of the Deaths of Kumanjay Presley, Kunmanara
Coulthard and Kunmanara Brumby [2005] NTMC 034, where the same recommendations were repeated verbatim.
[16] Correctional Services Act 1982 (SA), s 22.
[17] Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA);see also Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70.
[18] For discussion of imprisonment and impact of detention in an alien environment for Anangu, see South Australia’s Coroner’s Court, Finding of Inquest into the Death of Kunmanara Cooper, at < Kunmanara Cooper>.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback